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Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH
Before: Smt. Annapurna Gupta & Shri T.R. Senthil Kumar
In this case, the objection was filed by the assessee well within statutory period of 30 days of passing the draft assessment order which is a curable defect, namely Form No. 35A was signed by the Authorized Representative, since the assessee being an NRI not available in India at the time of filing of this objection. When Ld. DRP brought this defect to the notice of the assessee, the same was rectified by the assessee by affixing digital signature in Form No. 35A before Ld. DRP on 18-11-2022. Though the majority members of Ld. DRP held that the objection is filed beyond the period of limitation as per Rule 4 of DRP Rules. In our considered view, the proceedings before the Ld. DRP is extension of the assessment proceedings, since the correctness of the draft assessment order is being challenged before Ld. DRP. When the very same Authorized Representative who appeared before the A.O. in the draft assessment proceedings has signed the objections in prescribed Form 35A, the same is curable defect u/s. 292B of the Act, which was done by the assessee on 18-11-2022, when the assessee was put to notice by the Ld. DRP. Further the assessee also provided valid Letter of Authority in favour of the Chartered Accountant. Thus this is an irregularity and not an illegality which is curable defect u/s. 292B of the Act.
6.1. The Jurisdictional High Court in the case of Rajendra Kumar Maneklal Sheth (HUF) Vs. CIT reported in (1995) 213 ITR 715 wherein it was held that the appellate authorities has power to cure A.Y. 2017-18 Page No 5 Rajendra Ramjibhai Patel vs. ACIT the so called irregularity with regard to the signature in Form No. 35 as follows: “It is apparent that the AAC has felt that the delay was required to be condoned considering the various judgments which were cited before him, particularly, In view of the fact that the assessee has submitted a revised appeal memo duly signed by him and has prayed that delay, if any, be condoned. This may impliedly mean that the first appeal memo was not duly signed by the applicant. In such circumstance, when the appellate authority has considered the fact that when the revised appeal memo was submitted by the assessee and after considering various decisions, it thought that it was a fit case for condoning the delay as the Department is not likely to suffer any loss or prejudice. The AAC has exercised his discretionary jurisdiction and has condoned the delay and admitted the appeal for adjudication on merits under s. 249(3). For condonation of delay, he has considered the facts stated by the applicant and also the case law cited before him. Further, by admitting the appeal for adjudication on merits, the Department is not likely to suffer any loss or prejudice. Hence, it cannot be said that the discretionary power exercised by the appellate authority in curing the so-called irregularity with regard to signature on the appeal memo, calls for any interference by the Tribunal, particularly when the fresh appeal memo duly signed by the applicant was submitted before it.” 6.2. Similarly, Delhi High Court in the case of Remfry & Sons Vs. CIT reported in (2005) 276 ITR 001 wherein it was held that irregularity is to be cured by giving opportunity of hearing to the appellant as follows:
”Appeal [CIT(A)]-Signing of appeal memo-Memorandum of appeal signed by Authorized Representative of firm-Rule 45 is a procedural rule- Law relating to procedures is to be construed liberally-It would be in the interest of Justice, fairness and equity to provide an opportunity to the assessee to rectify the irregularity committed in regard to compliance of procedural law-Memorandum of appeal signed by a duly authorized person who acts on behalf of the managing partner/partner can be taken as substantial compliance with the provisions of r. 45-Non-adherence of some part of r. 45 may not be a ground for rejecting the appeal and it would be more appropriate for the authorities concerned to grant an opportunity to the assessee to remove the defect-Said Irregularity was A.Y. 2017-18 Page No 6 Rajendra Ramjibhai Patel vs. ACIT curable and could be rectified on the date of filing of the appeal or even subsequent thereto as the appeal was admittedly filed within the period of limitation-Appeal is restored to the CIT(A) for hearing in accordance with law.” 6.3. Further Rule 16 of the ITAT Rules also Authorize the Memorandum of Appeal in Form No. 36 filed by an assessee can be signed by his Authorized Representative with valid authorization from the assessee. Thus in the interest of Principle of Natural Justice, we hereby set aside the order passed by the Ld. DRP and direct it to decide the objection filed by the assessee and pass order on merits by duly giving proper opportunity of hearing to the assessee. Since the case is set aside to the file of Ld. DRP, remaining ground nos. 3 to 8 are not adjudicated, the same are consequential in nature.
In the result, the appeal filed by the Assessee is hereby allowed for statistical purpose.
Order pronounced in the open court on 17-10-2024 Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 17/10/2024 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A)
A.Y. 2017-18 Page No 7 Rajendra Ramjibhai Patel vs. ACIT
DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद